The case gave Justice Kagan a headache. Justice Ginsburg described parts of it as “sketchy,” and Justice Breyer bemoaned “an enormous administrative mess.” But the U.S. Supreme Court waded—reluctantly—into the murky depths of water law in TARRANT REGIONAL WATER DISTRICT V. HERRMANN and when they emerged, their decision was crystal clear. Oklahoma had triumphed. Not bad for a case where, at one point, a lawyer referenced the finer points of water law and Justice Scalia cried out, “I don’t even understand what you just SAID!”
The lawsuit, filed by Tarrant Regional Water District of Texas, began with what might seem like a simple question. The Red River Compact—an interstate water agreement between Oklahoma, Texas, Arkansas, and Louisiana—sets rules and regulations for how the Red River’s water will be shared among the four states. In order to administrate this water, the compact divides the Red River and its tributaries into reaches and subbasins. At issue was the water in Subbasin 5 of Reach 2. Could Texas get its share of this subbasin’s water by sticking a straw into Oklahoma?
Subbasin 5 starts at Denison Dam on Lake Texoma. After that, it follows the Red River as it squiggles east, delineating first the Oklahoma-Texas border, then the Texas-Arkansas line. Around the 94th meridian, the Texas state line cuts south and the river chugs on through Arkansas, winding southward until it hits Louisiana. Subbasin 5 ends at the Louisiana border.
The Red River Compact sets a minimum flow for the Red River through Subbasin 5: 3,000 cubic feet per second. That is, Louisiana is guaranteed that much water. If more than that makes it to Louisiana, the compact states that “excess” water can be divided between the four states, with no state taking more than one quarter. Tarrant claimed it needed to get its portion of the Texas quarter allotment from Oklahoma. The water it could get from the Red River in Texas was too salty to drink. (This in spite of the fact that their residents are already drinking it.) So they wanted to take their “guaranteed” 25 percent from a less salty spot in Oklahoma. At first they tried to buy this water. But since the Oklahoma Water Resources Board frowned on out-of-state water sales, they were prohibited from doing so. So they sued, claiming that the OWRB was in violation of the Red River Compact. They dragged in the Constitution too: Oklahoma, they said, was impeding interstate commerce.
Could Texas get its share of this subbasin’s water by sticking a straw into Oklahoma?
The Supremes quickly dispensed with the constitutional question. “You win or lose, up or down, according to the compact,” Justice Kennedy insisted at one point, interrupting a Texas attorney. It wasn’t the only time justices seemed to be favoring Oklahoma. The main reason was stated in the decision: States do not give up their sovereign rights easily. One would expect a clearly limited explanation to be part of any agreement where one state gave another the right to come and haul off its water. Just because the compact didn’t say you couldn’t cross state borders to get your water, that didn’t mean you could. The Supremes also pointed out that there was no 25 percent guarantee. Oklahoma and Texas were squabbling over whether Texas could get its share of the water from within its borders, but that was irrelevant. If a state can’t get its 25 percent, too bad. The compact didn’t guarantee it; it just said you couldn’t take more than that.
What became apparent during the oral arguments was that this entire case was an argument about hypothetical water. Was 3,000 cubic feet per second—a substantial amount—reaching Louisiana? Who knew? No one was measuring the Red River’s actual streamflow. Everyone was simply assuming there was excess water. When Justice Breyer pushed Oklahoma’s counsel on this, she blurted out “Justice Breyer, you have to trust me. There has never ever been an accounting ever, ever, ever, ever under this compact.”
The Supreme Court decision didn’t mince words. “We hold that Tarrant’s claims lack merit,” wrote Justice Sotomayor in paragraph one. No one following the case was surprised. In fact, given the evident weaknesses in Tarrant’s case, the obvious question was: Why did they bother? They spent $6 million fighting a case that was, at best, a long shot. The fact speaks to the district’s desperation. In court its lawyers trotted out a barrage of irrelevant data about how fast the Dallas-Forth Worth region was growing, and how much it needed more water. That’s like arguing your neighbor has to give you a case of beer because you invited too many folks over and your fridge has run dry.
If we were re-founding the nation, it would make sense to align state borders with the boundaries of watersheds. Instead we have artificial borders that mean some states have lakes, rivers, aquifers, and rainfall; others have cacti and prayer. The federal government has redistributed water wealth, spending billions in tax dollars to build dams and reservoirs in arid states, even constructing huge aqueducts to shuttle water from water-rich states to water-poor ones. (Somehow, no one ever seems to object to “socialized hydro-infrastructure.”) But artificially deflated water costs result in growth “bubbles.” In places like Dallas-Fort Worth, population has outpaced resources. In essence, the question the Supremes addressed was whether Oklahoma could be forced to offer up further “water welfare” to its neighbor state. As Oklahoma’s counsel pointed out, this would hardly be fair, since Oklahomans don’t vote for Texas legislators and have no say over Texas water policy.
No one expects Dallas-Forth Worth to shut its doors. But Texas may be called upon to do what Oklahoma has been doing, especially lately—to think strategically about its long-term water needs, and to spend public money addressing them. Yet Texas tea partyers are squawking about spending $2 billion of the state’s $11.8 billion rainy- day fund on water projects. The rainy day (or not rainy day)hasarrived.Texansarealsogoingtohavetoaccept that conservation—not a popular word in the Lone Star State—is going to be the best way of finding new water. Other places are doing it. Las Vegas has banned lawns. Los Angeles has instituted a tiered pricing structure that has reduced water use by 20 percent. New York City has accommodated growth for half a century with conservation alone. Recently Tarrant County restricted lawn watering to two days a week. That’s a baby step. But if north Texas wants to keep growing, it should just be the first step of a long journey.
Originally published in This Land, Vol. 4, Issue 13. July 1, 2013.